A pharmacy whose drugs have been used in 16 Missouri executions is arguing that its actions are political speech protected by the First Amendment to the Constitution, and that its identity should remain secret.
Death row inmates in Mississippi subpoenaed information from the Missouri Department of Corrections — including about the drugs and supplier — months ago. Missouri Attorney General Chris Koster has attempted to have the subpoena quashed, but so far has been unsuccessful.
In the past two weeks, the supplier has spoken up for the first time, under the pseudonym "M7." In a motion filed late Friday night, M7 said its drug sales are political speech.
The "decision to provide lethal chemicals to the Department was based on M7's political views on the death penalty, and not based on economic reasons," M7 wrote in an affidavit.
Although the pharmacy argues its execution drug sales are not based on economic reasons, it has made considerable money in the process.
Missouri has paid M7 more than $125,000, all in cash, for execution drugs, according to documents obtained by BuzzFeed News. The amount they are paid per execution — $7,178.88 for two vials of pentobarbital — is well above market value, and experts have expressed concern that the cash deals could violate federal tax law.
"The fact that M7’s expression of political views involves a commercial transaction does not diminish M7’s First Amendment rights," the pharmacy's attorneys wrote in Friday's court filing.
Selling execution drugs "is an expression of political views, no different than signing a referendum petition or selling a t-shirt."
Although M7 repeatedly cites a Supreme Court case — Doe v. Reed — for the proposition that "compelled disclosure of signatory information on referendum [is] subject to First Amendment review," M7 does not mention the outcome in the 2010 case: The Supreme Court ruled that petition signers, in general, are not protected by the First Amendment against having their identity revealed under a state's public records law.
While the court was split on whether petition signers' names could ever be shielded from public scrutiny, a majority of the court appeared skeptical. The court, however, left the possibility open, with Chief Justice Roberts writing for the court, "[T]hose resisting disclosure can prevail under the First Amendment if they can show 'a reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals from either Government officials or private parties.'"
It is that possibility that M7 uses to press its case for avoiding disclosure here.
Mississippi death row inmates have subpoenaed the Missouri execution drug information to help make their case against the Mississippi Department of Corrections in a challenge to its current execution protocol. In order to succeed, the inmates have to come up with a better method of execution. Their attorneys have subpoenaed information from several other states who have carried out executions recently.
M7's attorneys say the pharmacy will not sell execution drugs to Mississippi — and speculated that the subpoena would be "nothing more than a sham."
"At issue in this matter is whether the discovery process can be used to find out the names of lethal chemical suppliers so that anti-death penalty activists may harass and boycott those suppliers in an effort to coerce them into not supplying lethal chemicals," the attorneys wrote.
M7 argues — using the Doe v. Reed case — that it is afraid of facing boycotts, harassment, and even threats if its identity were revealed. The pharmacy sought out the opinion of a "threat assessment expert" to lay out his opinion in their motion.
The expert, Lawrence Cunningham, has testified about the threats to execution drug suppliers in Texas and Ohio as well. BuzzFeed News recently revealed that Cunningham's marquee example — that the FBI investigated a serious bomb threat to a supplier — was false. Cunningham spoke to no compounding pharmacies as part of his research, and based much of his opinion on social media.
M7 appears to have copied, quite literally, the evidence from the Texas and Ohio cases in making its argument that disclosing the information is unsafe — although, this time, Cunningham made no mention made of the now-discredited alleged FBI investigation.
"[T]here is a significant and substantial threat of physical harm to the compounding company/pharmacy, delivery personnel and pharmacist, as well as others in the vicinity of the compounding company/pharmacy if the identity of the compounding company/pharmacy or pharmacist is publicly disclosed," Cunningham wrote in an declaration.
This is the second time the 8th Circuit Court of Appeals has heard the case. Originally the court declined to quash the subpoena, arguing much of the state's argument was speculation. But at the request of Missouri, the court agreed to rehear the case.
This past week, the M7 pharmacy also attempted to intervene in an open records lawsuit that has been ongoing for more than two years in Missouri by several First Amendment groups, media outlets, and this reporter.